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EXHIBIT 4.8
[EXECUTION COPY]
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 15, 2000
By and Between
ORBITAL SCIENCES CORPORATION
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and entered
into as of January 15, 2000, by and between ORBITAL SCIENCES CORPORATION, a
Delaware corporation (the "COMPANY"), and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as agent (the "ADMINISTRATIVE AGENT") for the Approving Banks (the
"APPROVING BANKS") referred to in Amendment No. 6 dated as of December 21, 1999
to the Third Amended and Restated Credit and Reimbursement Agreement dated as of
December 21, 1998 among Orbital, the Banks parties thereto and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent and as Collateral Agent (as
amended from time to time, the "CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Company has agreed to issue to the Approving Banks warrants
(the "WARRANTS") to purchase an aggregate of 100,000 shares (the "WARRANT
SHARES") of the Company's Common Stock, par value $.01 per share (the "COMMON
STOCK"), in accordance with the terms thereof;
WHEREAS, in connection with the issuance of the Warrants, the Company has
agreed to provide to the holders of the Warrant and the Warrant Shares the
registration rights set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I
Certain Definitions
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
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1.1 "Commission" shall mean the Securities and Exchange Commission or any
federal agency at the time administering the Securities Act.
1.2 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any federal statute then in effect which has replaced such statute.
1.3 "Group" shall mean two or more Persons that would be deemed a "group"
for purposes of Rule 13d-5 under the Exchange Act.
1.4 "Holder" means any Person who is a holder or beneficial owner of
Registrable Securities for so long as such Person owns any Registrable
Securities. For this purpose, the holder of any Warrant shall be deemed to be
the holder of the shares of Common Stock issuable upon exercise of such Warrant.
1.5 "Person" shall mean an individual, corporation, limited liability
company, joint venture, partnership, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity
that may be treated as a person under applicable law.
1.6 "Registrable Securities" shall mean the Common Stock issued or
issuable upon exercise of the Warrants.
As to any Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement registering such
Registrable Securities under the Securities Act has been declared or becomes
effective and such Registrable Securities have been sold or otherwise
transferred by the Holder thereof pursuant to such effective registration
statement; (ii) such Registrable Securities are sold pursuant to Rule 144 under
circumstances in which any legend borne by such Registrable Securities relating
to restrictions on the transferability thereof, under the Securities Act or
otherwise, is removed by the Company or such Registrable Securities are
eligible to be sold pursuant to paragraph (k) of Rule 144; or (iii) such
Registrable Securities shall cease to be outstanding.
1.7 "Rule 144" shall mean Rule 144 promulgated under the Securities Act.
1.8 "Securities Act" shall mean Securities Act of 1933, as amended, or
any federal statute then in effect which has replaced such statute.
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ARTICLE II
Public Offering Pursuant to Registration Rights
2.1 Piggyback Registration.
(a) If the Company shall determine to register any equity
securities of the Company for its own account or for the account of other
holders of equity securities of the Company on any registration form (other than
Form S-4 or S- 8 or other successor forms) which permits the inclusion of
Registrable Securities held by any Holder (a "PIGGYBACK REGISTRATION"), the
Company will promptly give each Holder written notice thereof and, subject to
Section 2.1(c), shall include in such registration all Registrable Securities
requested to be included therein pursuant to the written requests of Holders
received within 10 business days after delivery of the Company's notice. Any
Piggyback Registeration may be withdrawn by the Company at any time.
(b) If the Piggyback Registration relates to an underwritten
public offering, the Company shall so advise the Holders as part of the written
notice given pursuant to Section 2.1(a). In such event, the right of any Holder
to participate in such registration shall be conditioned upon such Holder's
participation in such underwriting in accordance with the terms and conditions
thereof. The Board shall have the right to select the managing underwriter(s)
for any underwritten Piggyback Registration. All Holders proposing to distribute
their Registrable Securities through such underwriting shall (together with the
Company) enter into an underwriting agreement in customary form.
(c) If such proposed Piggyback Registration is an under written
offering and the managing underwriter for such offering advises the Company
that the securities requested to be included therein exceeds the amount of
securities that can be sold in such offering, any securities to be sold by the
Company or other holders of the Company's securities initiating such offering in
such offering shall have priority over any Registrable Securities held by
Holders, and the number of shares to be included by a Holder and other holders
of the Company's securities that did not initiate the offering in such
registration shall be reduced pro rata on the basis of the percentage of the
then outstanding Registrable Securities held by each such Holder and all other
holders exercising similar registration rights.
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2.2 Expenses of Registration. All expenses incurred in connection with
all Piggyback Registrations shall be borne by the Company, including without
limitation the reasonable cost of one counsel to all Holders reasonably
acceptable to the Company (the Company herein acknowledging that Xxxxx Xxxx &
Xxxxxxxx is acceptable counsel). All underwriting discounts, selling commissions
and other similar fees relating to Registrable Securities included in any
Piggyback Registration shall be borne by the holders of such Registrable
Securities pro rata on the basis of the amount of Registrable Securities sold by
them.
2.3 Registration Procedures. In the case of each registration effected by
the Company pursuant to this Article II, the Company will keep each Holder
advised in writing as to the initiation of such registration and as to the
completion thereof. At its expense, the Company will use its reasonable best
efforts, subject to Section 2.1(a), to:
(a) cause such registration to be declared effective by the
Commission;
(b) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus included therein (including post-effective amendments, prospectus
supplements and pricing supplements) as may be necessary to effect and maintain
the effectiveness of such registration statement;
(c) provide (A) the Holders of the Registrable Securities to be
included in such registration statement, (B) the underwriters (which term, for
purposes of this Agreement, shall include a person deemed to be an underwriter
within the meaning of Section 2(11) of the Securities Act) if any, thereof, (C)
the sales or placement agent therefor, if any, and (D) counsel for such
underwriters or agent, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment or supplement thereto;
(d) (A) register or qualify the Registrable Securities to be
included in such registration statement under such securities laws or blue sky
laws of such jurisdictions as any Holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, and (B) take any and all other actions as may be
reasonably necessary or advisable to
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enable each such Holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any other purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
2.3(d) or (2) consent to general service of process or taxation in any such
jurisdiction;
(e) furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
any selling Holder from time to time may reasonably request;
(f) promptly notify the selling Holders of Registrable Securities,
the sales or placement agent, if any, therefor and the managing under writer or
underwriters, if any, thereof and confirm such advice in writing, (A) when such
registration statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and with
respect to such registration statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission, the Blue Sky
or securities commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such registration
statement or prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 2.3(m) or Section 3 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities for the sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the foregoing,
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;
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(h) if requested by any managing underwriter or underwriters, any
placement or sales agent or any selling Holder of Registrable Securities,
promptly incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or such
holder specifies should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation, information with
respect to the principal amount of Registrable Securities being sold by such
Holder or agent or to any underwriters, the name and description of such Holder,
agent or underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the offering of the Registrable Securities to be sold by such
Holder or agent or to such underwriters;
(i) furnish to each Holder of Registrable Securities included in
such registration statement, each placement or sales agent, if any, therefor,
each underwriter, if any, thereof an executed copy of such registration
statement, each such amendment and supplement thereto (in each case including
all exhibits thereto and documents incorporated by reference therein) and such
number of copies of such registration statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically and reasonably
so requested by such Holder, agent or underwriter, as the case may be) and of
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus (including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such Holder and by any such agent and
underwriter, if any, in each case in the form most recently provided to such
party by the Company, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(j) cause all Registrable Securities covered by such registration
to be listed on each securities exchange or inter-dealer quotation system on
which similar securities issued by the Company are then listed;
(k) provide a transfer agent and registrar for all Registrable
Securities covered by such registration and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
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(l) cooperate with the Holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends;
(m) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct (the "RULES OF
CONDUCT") of the National Association of Securities Dealers, Inc. ("NASD")
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise use its reasonable best efforts to assist such
broker-dealer in complying with the requirements of such Rules of Conduct,
including, without limitation, by providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules of Conduct;
(n) otherwise comply with all applicable rules and regulations of
the Commission and make available to its security holders, as soon as reasonably
practicable but in no event later than eighteen months after the effective date
of such registration statement, an earnings statement covering the period of at
least twelve months, but not more than 18 months, beginning with the first month
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder); and
2.4 Delivery of Prospectus Supplement. In the event that the Company
would be required, pursuant to Section 2.3(f) above, to notify the selling
Holders of Registrable Securities, the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof, the Company shall as
soon as reasonably practicable prepare and furnish to each such Holder, to each
placement or sales agent, if any, and to each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to initial purchasers of Registrable Securities, such prospectus shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each Holder of
Registrable Securities agrees that upon receipt of any notice from the Company
pursuant to Section 2.3(f) hereof, such Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the
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registration statement applicable to such Registrable Securities until such
Holder shall have received copies of such amended or supplemented prospectus,
and if so directed by the Company, such Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the prospectus covering such Registrable Securities
at the time of receipt of such notice.
2.5 Furnishing Information by the Holders. The Company may require, as a
condition to the inclusion of any Registrable Securities of a Holder in any
registration statement, each Holder of Registrable Securities as to which any
registration is being effected to furnish to the Company such information
regarding such Holder and such Holder's intended method of distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such Holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such registration
contains or would contain an untrue statement of a material fact regarding such
Holder or such Holder's intended method of distribution of such Registrable
Securities or omits to state any material fact regarding such Holder or such
Holder's intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish information
so required so that such prospectus shall not contain, with respect to such
Holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing.
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2.6 Indemnification.
(a) The Company will indemnify each Holder whose Registrable
Securities are to be included in a registration pursuant to this Article II,
each of such Holder's officers, directors, partners, agents, employees and
representatives and each person controlling such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against all
expenses, claims, losses, damages and liabilities (or actions, proceedings or
settlements in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
statement, or document incorporated by reference therein, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each such indemnified person for any legal and any other expenses reasonably
incurred in connection with investigating and defending or settling any such
claim, loss, damage, liability or action, or arising out of any untrue statement
or alleged untrue statement of a material fact contained in any prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statement therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any such case to a
Holder to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by such Holder and provided for use in such
registration statement, prospectus, offering circular or other document or the
Holder delivered a registration or prospectus in violation of Section 2.4 hereof
after notice was provided by the Company as provided in Section 2.4. It is
agreed that the indemnity agreement contained in this Section 2.6(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld or delayed).
(b) Each Holder whose Registrable Securities are included in any
registration effected pursuant to this Article II shall indemnify the Company,
each of its directors, officers, agents, employees and representatives, and each
Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each other such Holder and
each of their officers, directors, partners, agents, employees and
representatives and each person controlling such Holder, and each underwriter,
if any, of such Registrable Securities and each Person who controls any such
underwriter, against all expenses, claims, losses,
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damages and liabilities (or actions, proceedings or settlements in respect
thereof) arising out of the indemnity as described in Section 2.6(a), but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document based upon written information
furnished to the Company by such Holder and provided specifically for use
therein; provided, however, that (x) no Holder shall be liable hereunder for any
amounts in excess of the gross proceeds received by such Holder pursuant to such
registration, and (y) the obligations of such Holder hereunder shall not apply
to amounts paid in settlement of any such claims, losses, damages or liabilities
(or actions in respect thereof) if such settlement is effected without the
consent of such Holder (which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 2.6
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed, the Company hereby approving Xxxxx Xxxx &
Xxxxxxxx as counsel to the Holders for the purposes of this Section 2.6(c)), and
the Indemnified Party may participate in such defense with counsel reasonably
acceptable to and paid for by the Indemnifying Party but otherwise at the
Indemnified Party's expense, and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2.6 to the extent such
failure is not materially prejudicial. No Indemnifying Party in the defense of
any such claim or litigation shall except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include an unconditional release of such Indemnified Party from all
liability in respect of such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 2.6 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder,
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shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
2.7 Other Obligations. With a view to making available the benefits of
certain rules and regulations of the Commission which may effectuate the
registration of Registrable Securities or permit the sale of Registrable
Securities to the public without registration, the Company agrees to:
(a) exercise reasonable efforts to cause the Company to be
eligible to utilize Form S-3 (or any similar form) for the registration of
securities;
(b) at such time as any Registrable Securities are eligible for
transfer under Rule 144(k), upon the request of the holder of such Registrable
Securities, remove any restrictive legend from the certificates evidencing such
Registrable Securities at no cost to such holder;
(c) exercise reasonable efforts to make and keep available public
information as defined in Rule 144 under the Securities Act at all times;
(d) exercise reasonable efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
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the Securities Act and the Exchange Act at any time after it has become subject
to such reporting requirements; and
(e) furnish any Holder upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time from and after 90 days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission (including Rule 144A) allowing a holder of
Registrable Securities to sell any such Registrable Securities without
registration.
2.8 Hold-Back Agreements. If requested by the Company or any underwriter
of securities of the Company, Holders shall not sell or otherwise transfer or
dispose of the Warrant or any Common Stock (other than pursuant to such
registration) during the period 15 days prior to and 90 days following the
effective date of registration statement relating to the offering of the
Company's securities for its own account or such longer period that the
underwriters may reasonably request. The obligations described in this Section
2.8 shall not apply to a registration on Form S-4 or Form S-8 or similar forms
which may be promulgated in the future and shall not apply to a Holder holding
less than 1% of the then-outstanding Common Stock (assuming exercise of the
Warrant for this purpose).
ARTICLE III
Representations and Warranties
The Company represents and warrants to, and agrees with, the
Administrative Agent and each of the Holders from time to time of Registrable
Securities that:
(a) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
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subsidiary of the Company is a party or by which the Company or any subsidiary
of the Company is bound or to which any of the property or assets of the Company
or any subsidiary of the Company is subject nor will such action result in any
violation of the provisions of the certificate of incorporation or by-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the Company of
the transactions contemplated by this Agreement, except the registration under
the Securities Act of the Registrable Securities, and such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and distribution of
the Registrable Securities.
(b) This Agreement has been duly authorized, executed and
delivered by the Company.
ARTICLE IV
Termination
This Agreement shall terminate immediately following the moment at
which there exist no securities of the Company that constitute Registrable
Securities; provided, however, that Section 2.6 hereof shall survive
indefinitely.
ARTICLE V
Miscellaneous
5.1 Recapitalization, Exchanges, etc. Affecting the Common Stock. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (a) the Registrable Securities and (b) any and all shares of
capital stock of the Company or any successor or assign of the Company (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution for the Registrable Securities,
by reason of any stock dividend, split, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. In the
event of any change in the capitalization
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of the Company as a result of any stock split, stock dividend or stock
combination, the provisions of this Agreement shall be appropriately adjusted.
5.2 Injunctive Relief. It is hereby agreed and acknowledged that it will
be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, in addition to any other remedies available under applicable law, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, without the posting of any bond, and if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law.
5.3 Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforce able
by the Company, the Administrative Agent, the Holders and their respective
successors and assigns. In the event that any transferee of any Holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing of any kind, be deemed a party
hereto for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.
5.4 Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statements as to the results thereto) made by or on behalf of any Holder of
Registrable Securities, any director, officer or partner of such Holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Warrant and the transfer
of Registrable Securities by such Holder.
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5.5 Amendment; Waiver.
(a) This Agreement may be amended only by a written instrument
signed by the Company and by the Administrative Agent with the consent of
Holders holding more than 66% of the then outstanding Registrable Securities.
(b) No provision of this Agreement may be waived orally, but only
by a written instrument signed by the party against whom enforcement of such
waiver is sought. Holders shall be bound from and after the date of the receipt
of a written notice from the Company setting forth such amendment or waiver,
whether or not the Registrable Securities shall have been marked to indicate
such amendment or waiver.
5.6 Notices. Except as otherwise provided in this Agreement, notices and
other communications under this Agreement shall be in writing (including a
writing delivered by facsimile transmission) and shall be deemed to have been
duly given if delivered personally, or sent by either certified or registered
mail, return receipt requested, postage prepaid, or by overnight courier
guaranteeing next day delivery, or by telex or telecopier, at the following
addresses:
if to the Company:
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Legal Department
Telecopier: 000-000-0000
with a copy to
Xxxxx and Xxxxxxx, L.L.P.
000 00xx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxx, Esq.
Telecopier: 000-000-0000
if to the Administrative Agent:
Xxxxxx Guaranty Trust Company of New York
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00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
if to any initial Holder, to it at its address
for notices under the Credit Agreement, with
a copy to the Administrative Agent
Any party may, by written notice given to the other parties in accordance with
this Section 5.6, change the address to which such notice or other
communications are to be sent to it. All such notices and communications shall
be deemed to have been given on the date of delivery thereof, if delivered by
hand, on receipt, if mailed, on the next day after the sending thereof, if by
overnight courier and when receipt is acknowledged, if telecopied.
5.7 Inspection. So long as this Agreement shall be in effect, this
Agreement and any amendments hereto shall be made available for inspection by
any Holder at the principal offices of the Company.
5.8 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
5.9 Headings. Article, section and paragraph headings are inserted for
convenience only and do not constitute a part of this Agreement.
5.10 Integration. This Agreement and the documents referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no
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restrictions, agreements, promises, representations, warranties, covenants or
under takings with respect to the subject matter hereof other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and under standings between the parties with respect to this subject
matter.
5.11 Illegality. In case any provision in this Agreement shall be
declared or held invalid, illegal or unenforceable, in whole or in part, whether
generally or in any particular jurisdiction, such provision shall be deemed
amended to the extent, but only to the extent, necessary to cure such
invalidity, illegality or unenforceability, and the validity, legality and
enforceability of the remaining provisions, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.
5.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
ORBITAL SCIENCES CORPORATION
By:
-----------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By:
-----------------------------------
Name:
Title:
